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[2009] QCA 209
Court of Appeal (Qld)
2009-07-24
Chief Justice, Keane JA and Wilson J, Separate, reasons for judgment of each member of the Court, each concurring as to the
Original judgment source is linked above.
Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: R v Gordon; ex parte Cth DPP [2009] QCA 209
PARTIES: R v GORDON, Brian McCormack (respondent) EX PARTE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS (applicant)
FILE NO/S: CA No 46 of 2009 / DC No 34 of 2009
DIVISION: Court of Appeal
PROCEEDING: Sentence Appeal by Cwth DPP
ORIGINATING COURT: District Court at Hervey Bay
DELIVERED ON: 24 July 2009
DELIVERED AT: Brisbane
HEARING DATE: 10 July 2009
JUDGES: Chief Justice, Keane JA and Wilson J / Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS: Application for extension of time within which to appeal refused****Notice of appeal struck out
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where Commonwealth Director of Public Prosecutions lodged notice of appeal against sentence out of time – where explanation for delay was late provision of revised transcript of sentencing remarks – whether extension should be granted / Crimes Act 1914 (Cth), s 17A / Criminal Code 1899 (Qld), s 228D, s 228G, s 669A, s 671 / Criminal Code 1995 (Cth), s 474.19, s 474.22 / Director of Public Prosecutions Act 1983 (Cth), s 9 / Judiciary Act 1903 (Cth), s 68 / Assheton v The Queen (2002) 132 A Crim R 237; [2002] WASCA 209, cited / Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54, cited / Everett v The Queen (1994) 181 CLR 295; [1994] HCA 49, cited / James v The Queen [2009] NSWCCA 62, cited / Peel v The Queen (1971) 125 CLR 447; [1971] HCA 59, cited / R v Adair & Attorney-General of Queensland [1997] QCA 185, cited / R v Cook; ex parte A-G (Qld); R v Cook; ex parte Commonwealth DPP [2004] QCA 469, cited / R v Daw [2006] QCA 386, cited / R v Gent (2005) 162 A Crim R 29; [2005] NSWCCA 370, cited / R v Jones (1999) 108 A Crim R 50; [1999] WASCA 24, cited / R v KU; Ex parte A-G (Qld) (2008) 181 A Crim R 58; [2008] QCA 20, cited / R v Liang & Li (1995) 82 A Crim R 39, cited / R v Melano; ex parte Attorney-General (Qld) [1995] 2 Qd R 186; [1994] QCA 523, cited / R v Salsone; ex parte A-G (Qld) [2008] QCA 220, cited / R v Tait (1979) 46 FLR 386, cited / The Queen v Wilton (1981) 28 SASR 362, cited / York v The Queen (2005) 225 CLR 466; [2005] HCA 60, cited
COUNSEL: W J Abraham QC for the applicant / A J Glynn SC, with P E Smith, for the respondent
SOLICITORS: Director of Public Prosecutions (Commonwealth) for the applicant / Suthers Lawyers for the respondent
CHIEF JUSTICE: I have had the advantage of reading the reasons for judgment of Keane JA. I agree with the orders proposed by His Honour and with his reasons.
KEANE JA: On 4 February 2009 the respondent was convicted on his own plea of:
• one count of using a carriage service to access child pornography material contrary to s 474.19(1) of the Criminal Code 1995 (Cth) ("the Commonwealth Code");
• one count of using a carriage service to access child abuse material contrary to s 474.22(1) of the Commonwealth Code; and
• one count of knowingly possessing child exploitation material contrary to s 228D of the Criminal Code 1899 (Qld) ("the Queensland Code").
In respect of each of the offences against the Commonwealth Code, the respondent was sentenced to 12 months imprisonment to be released forthwith upon giving a security by recognizance in the sum of $100, conditioned that he be of good behaviour for a period of three years.
In respect of the offence against the Queensland Code, the respondent was sentenced to 12 months imprisonment wholly suspended for an operational period of three years. Pursuant to s 228G of the Queensland Code, an order was made for the forfeiture of his computer.
The application to this Court
The applicant is the Director of Public Prosecutions of the Commonwealth ("the DPP"). The DPP seeks to contend, on an appeal to this Court, that the sentence imposed in respect of each of the Commonwealth offences was affected by errors of law and was, in any event, manifestly inadequate.
The DPP is empowered by s 9(7) of the Director of Public Prosecutions Act 1983 (Cth) to exercise "such rights of appeal (if any) as are exercisable by the Attorney-General in respect of that prosecution." The reference in this provision to the "Attorney-General" is to the Attorney-General of the Commonwealth, but it is settled that the Commonwealth Attorney-General has, by virtue of s 68(2) of the Judiciary Act 1903 (Cth), the same right of appeal as is conferred by s 669A of the Queensland Code upon the Attorney-General of Queensland.1
Because the notice of appeal was not filed until 10 March 2009, an extension of time is necessary to enable the DPP's appeal to proceed. The notice of appeal was filed six days late. The explanation for the delay which occurred in this case is that the sentencing remarks of the learned trial judge were not available in written form for consideration by the DPP until 19 February 2009.
I propose to set out brief summaries of the circumstances of the respondent's offending, of his personal circumstances, of the proceedings at sentence, and of the arguments advanced by the DPP on the merits of the proposed appeal before turning to a discussion of whether the extension of time sought by the DPP should be granted.
The circumstances of the offences
Interpol identified an Australian IP address belonging to the respondent or his wife as downloading child pornography images between 5 August 2007 and 8 August 2007.
On 1 May 2008 police executed a search warrant at the respondent's business premises where a laptop computer was seized. The respondent was shown a number of images on his laptop which he agreed that he had downloaded from the internet and saved within a folder on his computer. Examination of the respondent's computer revealed 3,290 images of child pornography material and two images of child abuse material which were stored on the hard drive of the computer.
The material depicted children ranging from approximately 12 months of age, with a large number of pre-pubescent girls between 12 months and 10 years of age. The two images of child abuse material were of a pre-pubescent child without underwear who was about to be hit by an adult with a table tennis paddle and a child whose underwear was partly pulled down having her hair pulled by an adult female who was about to hit her on the bottom with an open hand. The computer had been used on a number of occasions between 5 August 2007 and 1 May 2008 to access this material.
Of the material in question there were:
• 2,957 images depicting erotic posing with no sexual activity;
• 87 images of sexual activity involving children;
• 73 images of non-penetrative sexual activity between adults and children;
• 161 images of penetrative sexual activity between adults and children;
• two images of sadism.
The explanation given by the respondent for his conduct was that he was underemployed in his business as a pharmacist and came across the images while net-surfing. He saved the images because it was his habit to save everything. On the hearing of the appeal, an attempt was made on the respondent's behalf to argue that there was no sufficient basis in the evidence to conclude that all the images in question had been accessed using a carriage service in Australia because a number of these images may have been obtained while the respondent was living in Papua New Guinea. In my respectful opinion, however, the respondent's explanation as to how he came to have these images in his possession was a sufficient basis on which the sentencing judge might have regard to all the images as being involved in the contraventions of the Commonwealth Code.
The respondent co-operated with the authorities and entered a plea of guilty to an ex officio indictment.
The respondent's personal circumstances
The respondent was 57 years of age at the time of the offences. He was 59 years old when he was sentenced. He has no criminal history.
The respondent is a qualified pharmacist. He is married and his wife is supportive of him.
The sentence
Before the learned sentencing judge, the DPP argued for a sentence in relation to count 1 of 18 to 20 months imprisonment with release after one-third had been served in actual custody, and, in relation to counts 2 and 3, of 12 and six months imprisonment respectively, to be served concurrently with the term for count 1. The respondent's counsel contended for a sentence which would not involve actual custody.
The learned sentencing judge noted that the offences were serious and that they could not be regarded as victimless crimes.
His Honour accepted that "it's most unlikely that [the respondent will] ever re-offend". The learned sentencing judge also accepted that the respondent was previously regarded as "a person of good repute" and that "the fact of public shaming in itself is a very real punishment for those who are exposed as having committed these offences".
The learned sentencing judge remarked:
"So long as there is any kind of a market at all for child exploitation material then there will be those who will corrupt children, who'll abuse them so that that material can be provided.
It seems to me it is that vice which both the State and the Commonwealth legislation primarily addresses; that is the Parliaments are trying to do things which will afford some protection to children throughout the world from exploitation.
These are, as I've already said, very serious matters and it seems to me that one can only impose sentences of imprisonment in respect of these offences. The difference between counsel is not whether sentences of imprisonment should be imposed but whether, as the learned Crown Prosecutor would submit, some actual time must be spent in custody, or whether as Mr Smith submits, I can make an order which will enable [the respondent] to leave here today.
I've concluded that I should accept Mr Smith's submissions. In coming to that conclusion I've, of course, taken into account the various submissions made by counsel. Ms Mayall has emphasised to me that there were over 3,000 images on the computer. Mr Smith has pointed out that his instructing solicitor has perused those images and found numerous duplicates and so on."
"I've also had some considerable discussion with the learned Crown Prosecutor as to the difficulty I have in some respects in the fact that the thrust of her submissions seemed to be that a greater penalty should be imposed because of the higher penalty which is available under the Commonwealth legislation.
Your counsel has referred me to the decision of the Court of Appeal in Victoria in [R v Liang & Li (1995) 82 A Crim R 39] and that case as it seems to me resolves a number of difficulties which I felt in respect of the matters I've discussed with Ms Mayall.
It seems to me I must take into account the provisions of section 17A of the Commonwealth legislation and of sub-section 2 of section 9 of the State legislation. It does seem to me that I should only impose a sentence which involves actual incarceration if I am satisfied that there really is no other option realistically open to me. I'm not so satisfied.
It seems to me that by imposing sentences of imprisonment but ordering their suspension, or that [the respondent] be released on recognisance immediately, that they will be sentences that are capable of being regarded as sufficient deterrent to get the message across to the wider community that these matters will be treated seriously by the Courts. In other words that such a sentence will serve the purpose of general deterrence.
So far as … personal deterrence is concerned it seems to me that I need not be concerned there. I am as satisfied as one can be in these types of cases that it's most unlikely that [the respondent will] ever re-offend. It does seem to me that another important aspect of the sentencing process is to impose a sentence which will make clear society's denunciation of this type of conduct, and it seems to me the sentence I have in mind will sufficiently do that."
The DPP's arguments in relation to sentence
It is argued on behalf of the DPP that the sentences in respect of the Commonwealth offences are manifestly inadequate to reflect the criminality of the offending and the need for general deterrence. Ms Abraham QC, who appeared for the DPP, relied upon the proposition, now well-supported by authority, that the offences in question are of such a nature that "general deterrence must be the paramount consideration given the prevalence and availability of child pornography, particularly on the Internet."2
The applicant also argues that the learned sentencing judge failed to apply s 17A of the Crimes Act 1914 (Cth) correctly. This provision is to the effect that a court shall not pass a sentence of imprisonment on a person unless it is satisfied that no other sentence is appropriate in the circumstances. It is said that the learned sentencing judge expressly proceeded on the basis that a sentence of imprisonment was appropriate, whereas s 17A was then of no further relevance. The only question left to be resolved by his Honour was the question of when the respondent should be released. It is said that the sentencing judge erred in treating s 17A of the Crimes Act as having a bearing upon this question.
The third ground of challenge to the exercise of the sentencing discretion is that his Honour wrongly relied on the decision of the Victorian Court of Appeal in R v Liang & Li.3 It is argued that his Honour took the view that because "the vice" that the Commonwealth and State legislation aimed at was "identical", it was appropriate to approach the question of sentence by reference to the level of sentencing which would be applied in respect of the State offence, this course being necessary to avoid the respondent being disadvantaged by the circumstance that the charges had been brought by a Commonwealth agency as opposed to a State agency. In this regard, the maximum penalty for each of counts 1 and 2 is 10 years imprisonment. The maximum punishment available under s 228D of the Queensland Code was five years imprisonment.
In R v Liang & Li, Winneke P said:4
"… although it is for the prosecuting authority in its absolute discretion to determine which particular charge it will lay against an accused person, it is none the less relevant and proper for the judge on sentence to take into account as a relevant sentencing principle the fact that there was another and less punitive offence which not only could have been charged but indeed was as appropriate or even more appropriate to the facts alleged against the accused."
An extension of time?
I turn now to consider the DPP's application for an extension of time to enable the appeal to proceed. On behalf of the DPP, it is said that the delay in question was only six days and that there is no reason to think that the respondent has suffered any prejudice by reason of this brief delay. It is said that this Court should exercise its discretion to grant an extension of time in order to ensure that justice is done.
It must be said immediately that the DPP's submission does not recognise the very real prejudice to the respondent which arises in every case where the Court is asked to exercise its discretion to allow a prosecuting authority a further opportunity to seek to visit criminal punishment upon an individual who has already been punished by the processes of the administration of criminal justice. If the extension of time sought by the DPP were to be granted, the respondent would be confronted again with the prospect of actual imprisonment. This prospect brings into focus the important consideration that the DPP's application seeks from the Court an exercise of discretion which will expose the respondent to double jeopardy.5 In Dinsdale v The Queen,6 Kirby J, with whom Gaudron and Gummow JJ relevantly agreed,7 explained why Crown appeals against sentence have been regarded in a different light from an appeal against sentence by a convicted person. His Honour said:8
"For reasons of legal history and policy, the position of Crown appeals against sentence has long been regarded, in Australia and elsewhere, as being in a class somewhat different from that of an appeal against sentence by a convicted offender. When first introduced, Crown appeals were considered to cut across 'time-honoured concepts' (Peel v The Queen (1971) 125 CLR 447 at 452) of the administration of criminal justice in common law legal systems. For this reason, it has sometimes been said that, as a 'matter of principle' (Griffiths v The Queen (1977) 137 CLR 293 at 310), such appeals should be a comparative rarity. The attitude of restraint reflected in such remarks has often been justified on the basis that a Crown appeal against sentence puts the prisoner in jeopardy of punishment for a second time, a feature that is ordinarily missing from an appeal, or application for leave to appeal, brought by those who have been sentenced (Whittaker v The King (1928) 41 CLR 230 at 248, per Isaacs J (diss); cf R v Tait (1979) 46 FLR 386 at 388-390; 24 ALR 473 at 476-477; Malvaso v The Queen (1989) 168 CLR 227 at 234; R v Grein [1989] WAR 178 at 180; Everett v The Queen (1994) 181 CLR 295 at 299)."
It must be understood that the discretion with which I am presently concerned is the discretion to extend time for giving a notice of appeal. That discretion is conferred by s 671(3) of the Queensland Code. While it may be arguable that the considerations to which Kirby J referred in the passage cited do not apply in relation to the exercise of the right of appeal conferred on the Attorney-General by s 669A of the Queensland Code,9 there is no reason to think that these considerations do not apply to the exercise of the discretion conferred by s 671(3).
It is now well-settled by authority that the judicial discretion to expose an individual to that prejudice will only be exercised for good reason. In R v KU; Ex parte A-G (Qld),10 this Court affirmed that it will exercise its discretion to grant the Attorney-General an extension of time to appeal to expose an individual to this kind of double jeopardy only in exceptional circumstances. In that case it was said that "the abiding reason for this constraint is that, in the administration of criminal justice, the interests of finality are, save in exceptional cases, of paramount importance as a protection of the individual from ongoing harassment by the State."11
In R v KU; Ex parte A -G (Qld), this Court rejected the view that an arguably appellable error would, "without more, constitute 'exceptional circumstances' such as would justify exposing an accused person to the additional jeopardy of a more severe sentence".12 In that case, this Court granted an extension of time to allow an appeal by the Attorney-General under s 669A of the Queensland Code to proceed because the errors which arguably infected the sentencing process in that case were of "so serious a kind that they must be corrected in order to maintain public confidence in the administration of justice".13
It should also be noted that in R v KU; Ex parte A-G (Qld), the late filing of the notice of appeal by the Attorney-General was satisfactorily explained. In this regard, the notices of appeal were filed within a couple of days of the Attorney-General's office becoming aware, for the first time, of the orders against which he sought to appeal. By contrast, in the present case, the explanation for the delay on the part of the DPP is distinctly unsatisfactory.
"… [T]he existence of an obvious error in the judgment below, even, as in this case, a jurisdictional error, is not alone sufficient to justify the grant of an extension of time in the absence of an adequate explanation for the delay."
Is good reason to grant an extension shown in this case?
It is unnecessary to discuss the first and second of the DPP's substantive submissions because it is clear that the third submission may be accepted as correct. The learned sentencing judge's observations in respect of R v Liang & Li suggest that his Honour did indeed proceed on the footing that the five year maximum penalty available under s 228D of the Queensland Code should be regarded as fixing the relevant maximum. I am respectfully of the opinion that that approach was erroneous.
The offence created under the State Code was not "as appropriate or even more appropriate to the facts alleged against" the respondent than the offences created under the Commonwealth Code. The Queensland offence did not involve use of the internet. It cannot be said that the use of the internet to procure the images adds little to the criminality involved in their possession. Such a view would fail to recognise that the vice attacked by the Commonwealth legislation is the use of the internet to access the market for child pornography and the consequent boost to that market of which internet access is such an important element.
Accordingly, it may be accepted for the sake of argument that the exercise of the sentencing discretion was attended by an error of law, and, as a result, so that it would fall to this Court to exercise the sentencing discretion afresh. But even if it be accepted that there was an error in point of legal principle which affected the sentence, I am not persuaded that the error is of such seriousness as to warrant the exercise by this Court of its discretion to expose the respondent to double jeopardy.
I have already observed that no satisfactory explanation has been provided for the DPP's delay in instituting the appeal. Further, this is not a case where there is such a disparity between the sentence which was imposed and the sentence which this Court might impose that a decision not to allow the respondent to be re-sentenced is apt to perpetuate a serious injustice or to undermine public confidence in the administration of criminal justice.
In argument in this Court, Ms Abraham QC acknowledged that at sentence the DPP sought a custodial period of six months and conceded that it would be inappropriate for this Court to re-sentence the respondent to a longer term of actual custody than was sought at first instance. This concession was properly made given that it is well-established that "[g]enerally speaking, if [a] submission [as to sentence] is not made to the sentencing judge the prosecution should not be able to advance that contention successfully on an appeal by the Attorney-General."15
Accordingly, if this Court were to re-sentence the respondent, the custodial component of the respondent's sentence could not exceed six months. And there are cases where sentences with no custodial element have been imposed.
Conclusion and orders
The explanation for the delay by the DPP in instituting this appeal is not satisfactory. While the decision below may well have involved an error of law, I am not persuaded that a substantial period in actual custody would have to be imposed on the respondent by this Court, if the appeal were to proceed, in order to avoid a serious miscarriage of justice or to maintain public confidence in the administration of justice. In summary, I do not consider that good reason has been shown for the Court to override the need for finality in the administration of justice and expose the respondent to double jeopardy.
I would, therefore, refuse the DPP's application for an extension of time.
In consequence, the notice of appeal should be struck out.
WILSON J: I agree with the orders proposed by Keane JA, and with his Honour's reasons for judgment.
See Peel v The Queen (1971) 125 CLR 447. ↩
R v Gent (2005) 162 A Crim R 29 at 38 [33]. See also R v Jones (1999) 108 A Crim R 50 at 51; Assheton v The Queen (2002) 132 A Crim R 237; R v Cook; ex parte A-G (Qld); R v Cook; ex parte Commonwealth DPP [2004] QCA 469 at [21], [26], [31] – [33]. ↩
(1995) 82 A Crim R 39. ↩
(1995) 82 A Crim R 39 at 44. ↩
Cf R v Tait (1979) 46 FLR 386; R v Wilton (1981) 28 SASR 362 at 367 – 368; Everett v The Queen (1994) 181 CLR 295 at 302; R v KU; Ex parte A-G (Qld) (2008) 181 A Crim R 58 at [36]. ↩
(2000) 202 CLR 321. ↩
(2000) 202 CLR 321 at 330 [24] – [26]. ↩
(2000) 202 CLR 321 at 340 – 341 [62] (citations footnoted in original). ↩
Cf R v Melano, ex parte Attorney-General (Qld) [1995] 2 Qd R 186 at 189 – 190; York v The Queen (2005) 225 CLR 466 at 474 – 475 [24] – [27], 484 – 486 [61] – [63]. ↩
(2008) 181 A Crim R 58 at [34] – [38]. ↩
R v KU; Ex parte A-G (Qld) (2008) 181 A Crim R 58 at [37]. ↩
R
Gordon; ex parte Cth DPP [2009] QCA 209
(2000) 202 CLR 321
(1994) 181 CLR 295
(1971) 125 CLR 447
(1979) 46 FLR 386
(1981) 28 SASR 362
(2005) 225 CLR 466
(1977) 137 CLR 293
(1928) 41 CLR 230
(1989) 168 CLR 227
(2004) 217 CLR 198
The only reason put forward by the DPP to explain the delay in filing the notice of appeal is that the learned sentencing judge's sentencing remarks were not provided in written form to the DPP until 19 February 2009. There is no explanation why the notice of appeal was not filed until 10 March 2009. In particular, there was no evidence that the DPP's officers were unable to make the necessary assessment of the merits of an appeal during the period between 19 February 2009 and 4 March 2009. The absence of any explanation in this regard is rendered more poignant by the circumstance that one of the grounds of appeal sought to be agitated by the DPP is that the sentence was manifestly inadequate. Even if one were prepared to assume, in the absence of evidence, that it was reasonable of the DPP to delay to peruse and consider his Honour's sentencing remarks in order to ensure that they were affected by the arguable errors of law advanced in this Court, that course was not necessary to enable the DPP to appreciate that the sentence should be challenged on the ground of manifest inadequacy.
In these circumstances, the observations of Davies JA and Ambrose J (with whom White J agreed) in R v Adair & Attorney-General of Queensland14 are apposite:
In this regard, the respondent's offences were serious, but the images in question were far from the worst sort of material which is encountered in these cases. The respondent did not pay for any of this material, and there was no other commercial aspect to the respondent's offending. Importantly, the respondent was not said to have distributed this material to any other person or to have been part of an online network. The respondent poses no threat to the community. There is no basis on which this Court could come to a different view to that taken by the learned sentencing judge to the effect that "it's most unlikely that [the respondent] will ever re-offend."
It may be accepted that the "paramount" need for deterrence requires that a sentence of imprisonment be imposed for offending of the present kind, and even that such a sentence would usually involve a period of actual custody. Reference may be made here to the decision of the Court of Criminal Appeal of the Supreme Court of New South Wales in James v The Queen.17 But this Court has recognised that strong mitigating factors of the kind which are present in this case may warrant the immediate release of an offender on his own recognisance.18 It may be noted that Ms Abraham QC did not refer this Court to any decision of the High Court or of an intermediate Court of Appeal in Australia which excludes a non-custodial sentence of imprisonment from the range of punishments appropriate to the contraventions of the Commonwealth Code.
Cf R v KU; Ex parte A-G (Qld) (2008) 181 A Crim R 58 at [38]. ↩
(2008) 181 A Crim R 58 at [56]. ↩
[1997] QCA 185 at p 2. ↩
The Queen v Wilton (1981) 28 SASR 362 at 368; Everett v The Queen (1994) 181 CLR 295 at 302; GAS v The Queen (2004) 217 CLR 198 at 213 [40]. ↩
Cf R v Daw [2006] QCA 386; R v Jorgensen, unreported, District Court, Perth, 31 October 2006; R v Butler, unreported, District Court, Perth, 6 June 2007. ↩
[2009] NSWCCA 62 at [1], [7] – [8] and [11]. ↩
Cf R v Salsone; ex parte A-G (Qld) [2008] QCA 220 at [31]. ↩